Jeffery MacK Chapin v. Texas Department of Criminal Justice, Institutional Division, Janie Cockrell, Joe S. Fernald, G. Mohr, Priscilla Daly, Kelli Ward, Robert Losack, Jerry Wesbster, L. Bell, and B. Boone

Affirmed and Memorandum Opinion filed April 20, 2004 Affirmed and Memorandum Opinion filed April 20, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00972-CV ____________ JEFFREY MACK CHAPIN, Appellant V. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, JANIE COCKRELL, JOE S. FERNALD, G. MOHR, PRISCILLA DALY, KELLI WARD, ROBERT LOSACK, JERRY WEBSTER, L. BELL, and B. BOONE, Appellees On Appeal from the 12th District Court Walker County, Texas Trial Court Cause No. 22,068 M E M O R A N D U M   O P I N I O N Appellant, Jeffrey Mack Chapin, sued the Texas Department of Criminal Justice, Institutional Division and various employees (collectively, ATDCJ@)[1] for failing to allow him to take Aan emergency shower@ after he came into contact with a number of cleaning chemicals causing burns and for retaliating against him for filing a grievance by confiscating his typewriter. The trial court ordered the Texas Attorney General to file as amicus curiae an advisory as to whether Chapin had satisfied all filing requirements under Chapter 14 of the Texas Civil Practice and Remedies Code necessary to maintaining his lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. '' 14.001B014 (Vernon 2002). On June 12, 2003, the Attorney General filed an amicus curiae report advising the trial court that Chapin had not satisfied all requirements under Chapter 14 and recommended that Chapin=s claims be dismissed. On June 16, 2003, the trial court dismissed Chapin=s claims as frivolous. On appeal, Chapin contends the trial court abused its discretion in dismissing his claims. We affirm. We review the trial court=s dismissal of an inmate=s claims under Chapter 14 for an abuse of discretion. Retzlaff v. Texas Dep=t of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules and principles, or its actions are arbitrary or unreasonable based on the circumstances of the particular case. Id. Appellant bears the burden of overcoming the presumption that the trial court=s action was justified. Id. The trial court may dismiss an inmate suit before or after service of process if it determines the suit is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2). In determining whether the suit is frivolous or malicious, the trial court may consider whether (1) the claim=s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because it arises from the same operative facts. Id. at ' 14.003(b). Section 14.004 requires an inmate who files an affidavit or unsworn declaration of inability to pay costs to file a separate affidavit or declaration identifying all pro se lawsuits (except those filed under the Texas Family Code) the inmate has previously filed, specifying the operative facts for which relief was sought, the case name, cause number, the court in which it was brought, the names of the parties, and the result of the suit, including whether it was dismissed as frivolous or malicious. Tex. Civ. Prac. & Rem Code Ann. ' 14.004(a). The Texas Legislature enacted section 14.004 to curb the problem of constant, often duplicative, inmate litigation by requiring the inmate to notify the trial court of previous litigation and the outcome of such litigation. Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex. App.CHouston [1st Dist.] 2000, pet. denied); Bell v. Texas Dep=t of Criminal Justice, 962 S.W.2d 156, 158 (Tex. App.CHouston [14th Dist.] 1998, pet. denied). The trial court can determine, based on previous filings, whether the suit is frivolous because the inmate has already filed a similar claim. Clark, 23 S.W.3d at 422; Bell, 962 S.W.2d at 158. Without information on appellant=s previous lawsuits, the trial court is unable to consider whether appellant=s current claim is substantially similar to a previous claim. Clark, 23 S.W.3d at 422; Bell, 962 S.W.2d at 158. Chapin contends the trial court abused its discretion in dismissing his suit because he substantially complied with the requisites of Chapter 14. To the contrary, the record reflects that while appellant filed a APlaintiff=s Declaration Relating to Previous Filings@ when he filed his original petition listing two lawsuits, it does not state the operative facts, the cause numbers, the courts in which those lawsuits were filed, or the result of those suits. Chapin=s declaration on his previous filings does not meet the requirements of section 14.004. When an inmate does not comply with the affidavit requirements of section 14.004, the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate and, therefore, is frivolous. Gowan v. Texas Dep=t of Criminal Justice, 99 S.W.3d 319, 321 (Tex. App.CTexarkana 2003, no pet.); Obadele v. Johnson, 60 S.W.3d 345, 348 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Clark, 23 S.W.3d at 422; Bell, 962 S.W.2d at 158. Thus, because Chapin did not meet the requirements of section 14.004, the trial court was entitled to assume this case was substantially similar to one previously filed by Chapin and dismiss his claims. Chapin complains the trial court should have considered his supplemental declaration on previous filings, which he filed on June 18, 2003, two days after the trial court had dismissed his claims. Chapin=s supplemental declaration lists five pro se lawsuits he had filed previously. Chapin=s supplemental declaration appears to comply with section 14.004. However, because the trial court may dismiss an action before or after service of process, the trial court is under no duty to allow an inmate to cure any defects in the affidavit. Hickman v. Adams, 35 S.W.3d 120, 125 (Tex. App.CHouston [14th Dist.] 2000, no pet.). In any event, Chapin also failed to meet the filing requirements of section 14.005. Under section 14.005, Chapin was also required to exhaust his administrative remedies in the prison grievance system. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(a); Tex. Gov=t Code Ann. ' 501.008 (Vernon 1998). Section 14.005 requires the filing of an affidavit or unsworn declaration stating the date the grievance was filed and the date the written decision was received by the inmate and a copy of the written decision from the grievance system. Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(a)(1), (2). Section 14.005 allows the trial court to ensure that an inmate proceeding in forma pauperis has first used TDCJ=s grievance procedure, if it is applicable to his claim. Smith v. Texas Dep=t of Criminal Justice, 33 S.W.3d 338, 341 (Tex. App.CTexarkana 2000, pet. denied). The trial court is further entitled to use an inmate=s failure to file a section 14.005 affidavit or unsworn declaration in deciding whether to dismiss the suit. Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex. App.CBeaumont 2003, no pet.). At the time he filed his original petition, Chapin did not file an affidavit or unsworn declaration stating the date his grievance was filed and the date he received the written decision, or file a copy of the written decision. On June 18, 2003, after the trial court dismissed his claims, Chapin filed an unsworn declaration related to two grievances he filed. Once again, Chapin complains the trial court should have considered his post-dismissal unsworn declaration on his grievances. Section 14.005 allows the trial court to dismiss a suit when it is clear the inmate has failed to provide the information required by the statute; therefore, the information must be filed before it comes to the trial court for review. Smith, 33 S.W.3d at 341. Even if Chapin had filed his unsworn declaration prior to the dismissal of his claims or if the trial court had considered the declaration after dismissing the claims, the result would have been the same. Section 14.005 further requires an inmate to file his claim before the thirty-first day after the date he receives a final, written decision from the prison grievance system. Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(2)(b). Chapin stated in his unsworn declaration that he received the written decision in the first grievance on January 14, 2003, and the written decision in the second grievance on April 14, 2003. Chapin did not file his original petition until May 21, 2003Cmore than 31 days after he received either written decision. Compliance with section 14.005 is a prerequisite to judicial review of inmate claims. Retzlaff, 94 S.W.3d at 652. Therefore, if the inmate fails to file his claim before the thirty-first day after the date the inmate received the written decision from the grievance system, the trial court must dismiss the claim. Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(b); Lewis v. Johnson, 97 S.W.3d 885, 887 (Tex. App.CCorpus Christi 2003, no pet.); Smith, 33 S.W.3d at 340; see also Moreland v. Johnson, 95 S.W.3d 392, 395 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (stating suit that is not timely filed pursuant to 14.005(b) is barred and may be dismissed with prejudice). Thus, section 14.005(b) allowed the trial court no discretion but to dismiss Chapin=s claims. See Lewis, 97 S.W.3d at 888 (AEven if the court had set a date to conduct a hearing on appellees= motion and had considered Lewis=s response, the outcome would have been the same because the statute allowed the court no discretion but to dismiss the lawsuit.@). Appellant further complains that the trial court failed to make findings of fact and conclusions of law defining why it dismissed his suit. See Tex. R. Civ. P. 296, 297. However, Texas Rules of Civil Procedure 296 and 297 are not applicable when an inmate=s case is dismissed pursuant to Chapter 14. Retzlaff, 94 S.W.3d at 655. Chapin also complains that (1) the trial court sua sponte should have appointed an attorney ad litem; (2) the trial judge should have recused himself from this case for bias as evidenced by allowing the Attorney General 60 days to respond to his petition and by not hearing Athe correction made by Appellant@; and (3) the trial court did not enter a preliminary injunction to protect Chapin from any retaliation. In view of the fact that the trial court was required to dismiss Chapin=s claims, we find the trial court did not err in failing to appoint an attorney ad litem, recuse himself, or enter an injunction. Accordingly, the judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed April 20, 2004. Panel consists of Justices Yates, Anderson, and Hudson. [1] Chapin sued Janie Cockrell, Joe S. Fernald, G. Mohr, Priscilla Daly, Kelli Ward, Robert Losack, Jerry Webster, L. Bell, and B. Boone.